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ICYMI: Our Social Media Posts This Week -- May 10 - 16, 2015

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week.  You can check out the full posts by clicking on the links.

On Sunday 5/10/15 we posted about a discharge for poor performance or age discrimination (and let you be the judge). In this case, Odell, who was 80 when his employment ended, had worked as a salesman for the company for over 50 years (although ownership changed during that time). He claims he was discharged due to age; he supports that by saying employees made ageist comments, including asking him when he was going to retire, and that when he complained about it, he was fired. He also noted that although the company cited poor performance as the reason for discharge, no similarly-situated employee had been discharged. He filed a suit under the ADEA and state law. The case is currently headed toward a jury trial.

TAKEAWAY: Employers can indeed discharge older employees and, in PA, with no written contract to the contrary, don’t even need a reason. However, make sure the discharge is not based on a protected characteristic like age – and that your manager’s loose lips don’t contribute to the sinking of your ship.

The post on Monday 5/11/15 was about when experience pays: paid vs unpaid internships. This post was a follow-up to our 4/25/15 post on this subject. Colleges are about done finals and students will be looking for internships during the summer (or even during the school year). You as an employer can offer that, but make sure to do it right and not run afoul of the law. This post lists six criteria the Dept. of Labor looks at in determining of the internship can be unpaid; they include that it is similar to training that would be given in an educational environment and is for the benefit of the intern. The others are in the post.

TAKEAWAY: Check with an employment law attorney before you make an offer for the internship to ensure whether or not you must treat the person as an employee or that it can be an unpaid position.

In the post on Tuesday 5/12/15, we were reminded that the ADA interactive process is a two-way street. The news often features an employer who has not done what it needs to under the ADA to accommodate an employee, but sometimes it is the employee who drops the bag (and loses any potential legal claims as to ADA violation). Here, Pamela worked for Kohl’s Department Stores. When Kohl’s restructured, her hours were changed and sometimes included swing shifts. She told her boss that the new schedule aggravated her diabetes; she also turned in a doctor’s note requesting a predictable day-shift position (as an accommodation). Approval was given to avoid scheduling Pamela on swing shifts, but not nights or weekends. She quit. Her boss asked what she could do and that Pamela reconsider to discuss other potential accommodations. Pamela left. A week later, her (former) boss called and again asked her to rethink the resignation and consider possible alternative accommodations. Pamela had no further contact with Kohl’s. After she filed a charge with the EEOC, it sued on her behalf, The trial court entered summary judgment for Kohl’s and the appellate court affirmed, finding that Pamela had not participated in further discussions about possible accommodation.

TAKEAWAY: Accommodation under the ADA is a two-way street with green lights both ways. Both parties must take part; if the employee does not, s/he will not have a valid legal claim against the employer for failure to accommodate.

The post on Wednesday 5/13/15 told us that pregnancy discrimination is more common in low-wage, male-dominated jobs. Why do you care? Because you should not allow this to occur and can look especially close at these types of positions. New positions or duties need not be created for pregnant employees, but they cannot be penalized just because they are pregnant. Likewise, don’t assume they cannot do part of their job if pregnant; let them do the job and deal with any issue if and when you get a doctor’s note limiting job performance in some way. Remember the recently-decided Young v. UPS case …

TAKEAWAY: Pregnant employees need not be treated more favorably than other employees similar in their (in)ability to work, but they must be treated at least the same as those other employees.

In the post on Thursday 5/14/15, we learned about employee versus contractor and knowing the right classification. Many state and federal agencies are looking closely at worker classification, so you will want to get it right. Just because the person is called a contractor or receives a Form 1099 does not mean s/he is a contractor for legal, wage and tax purposes. Some of the factors used to determine proper classification are in the post and include whether the person uses his special skill, knowledge or training in doing the work. The most important factor is control – the more control the business exercises, the more likely the worker will be classified as an employee.

TAKEAWAY: We’ve said it before and will again: make sure you properly classify your workers to avoid lawsuits and wage or tax penalties.

The post on Friday 5/15/15 was about a smoking gun or just thick smoke based on a boss’s “Your job or your daughter” comment. This resulted in an ADA associational bias claim. What happened? A receptionist was fired after many absences to care for her daughter. In fact, out of 132 work days, she arrived late 27 times, left work early 54 times, and was absent 17 days. She also worked beyond her scheduled eight-hour shift more than 31 times. She was only disciplined once for being late. One day, her daughter went to the ER; she told her boss who responded that she should not worry about her work absence. She took 2 more days off since her daughter remained in the ER. Later that month and in the following month, she took more time off to care for her daughter; she kept her boss apprised. When she returned to work after the latest absence, she was fired. She was told that the company “needed someone without children in her position.” After asking to keep her job, her boss again said he needed someone who could be there and asked, “How can you guarantee me that [] two weeks from now your daughter is not going to be sick again?” Not surprisingly, she sued under the ADA and state law, asserting disability-based associational discrimination and other claims. The judge denied summary judgment and found that the boss’s comments were either a smoking gun or, at least, a “thick cloud of smoke” sufficient to send the case to trial.

TAKEAWAY: Train your managers (and HR personnel) so they know what they can and cannot say to employees – remember that loose lips can indeed sink big ships.

Finally, in the post yesterday 5/16/15, we talked about how to handle inappropriate social media posts by employees. Think about it and come up with a plan of action before it actually occurs. And make sure to look at both company-owned or sponsored and individual socmedia outlets; both can be harmful to the employer.

TAKEAWAY: It’s no longer a new day; you should have in place legally-compliant policies dealing with employee’s use of social media -- on your company’s sites and their personal sites – and both communicate those policies to employees and enforce them.

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